Context of '1986: Federal Court Rules Fairness Doctrine Not Needed'

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The Federal Communications Commission (FCC) enacts the Fairness Doctrine, which enjoins American television and radio networks to give “reasonable opportunities” for differing viewpoints on controversial political and social issues to be aired. The Fairness Doctrine has two basic elements: broadcasters must devote some of their airtime to discussions of controversial matters of public interest, and they must air contrasting views regarding those matters. Stations have a wide latitude as to how to provide those contrasting views, in news segments, editorials, or public affairs shows. The rule comes from a 1928 practice adopted by the forerunner of the FCC, the Federal Radio Commission (FRC), which called for broadcasters to show “due regard for the opinions of others.” [Fairness and Accuracy in Reporting, 2/12/2005; Jamieson and Cappella, 2008, pp. 45] The FCC views station licensees as “public trustees,” and as such have an obligation to afford reasonable opportunity for discussion of contrasting points of view on controversial issues of public importance. [Museum of Broadcasting, 1/27/2008] In 2005, communications law expert Steve Rendell will write: “There are many misconceptions about the Fairness Doctrine. For instance, it did not require that each program be internally balanced, nor did it mandate equal time for opposing points of view. And it didn’t require that the balance of a station’s program lineup be anything like 50/50. Nor, as Rush Limbaugh has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talkshow hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talkshows. Indeed, the talkshow format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talkshow schedules, even in liberal cities, but none was ever muzzled… The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views.” Rendell will note that the Fairness Doctrine has won support from organizations on all sides of the political and social spectrum. [Fairness and Accuracy in Reporting, 2/12/2005]

Congress amends the Communication Act of 1934 to enshrine the Fairness Doctrine (see 1949) into law. The pertinent portion of the act now reads, “A broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance.” [Fairness and Accuracy in Reporting, 2/12/2005]

In a landmark decision, the Supreme Court rules that the Federal Communications Commission (FCC)‘s Fairness Doctrine, which mandates that broadcasters provide opportunities for differing viewpoints to be aired concerning political and social issues (see 1949 and 1959), is constitutional. The case, Red Lion Broadcasting Co. v. FCC, concerns personal attacks alleged by journalist Fred Cook, who says he was vilified on the air by conservative Christian broadcaster Reverend Billy James Hargis. Cook had demanded free air time under the Fairness Doctrine to respond to the attacks. In an 8-0 decision, the Court rules that although similar laws are unconstitutional when applied to the press, radio stations must hew to a different standard because of the limited public airwaves. Justice Byron White, writing for the majority, finds: “A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the government from requiring a licensee to share his frequency with others.… There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.… It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.… It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.” White’s ruling warns that if the Fairness Doctrine ever restrains speech, then its constitutionality should be reconsidered. [Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 6/9/1969; York Daily Record, 5/6/2003; Fairness and Accuracy in Reporting, 2/12/2005]

The Federal Communications Commission (FCC) decides that the Fairness Doctrine, in place since 1949 (see 1949 and 1959), is no longer needed to control political discussions on American broadcasts. The Fairness Doctrine requires that broadcasters provide “reasonable opportunities” for the presentation of differing views on controversial public issues. [Jamieson and Cappella, 2008, pp. 45] The FCC’s leadership is now populated largely with Reagan administration political appointees, conservatives who have a strong interest in deregulating the broadcast industry. First among these appointees is FCC chairman Mark Fowler, formerly a broadcast lawyer who has little patience for the idea that broadcasters have a unique role or bear special responsibilities to ensure broad discourse. “The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants,” Fowler says. In 1983, he said that television is “just another appliance—it’s a toaster with pictures.” He endorses near-complete deregulation, having said in 1983, “We’ve got to look beyond the conventional wisdom that we must somehow regulate this box.” The only regulations Fowler supports are those that help corporations manage frequency licensing. Fowler came into the FCC vowing to repeal the Fairness Doctrine, and spends his time as chairman working towards that goal, arguing that the doctrine violates broadcasters’ First Amendment rights. Though the doctrine remains law, the FCC stops enforcing it. [Fairness and Accuracy in Reporting, 2/12/2005]

A federal appeals court agrees with the Federal Communications Commission (FCC) that the Fairness Doctrine, which mandates that broadcasters provide opportunities for different sides of controversial political and social issues (see 1949 and 1959), is no longer needed (see 1985). [Jamieson and Cappella, 2008, pp. 45] In the case Meredith Corp. v. FCC, the court rules 2-1—with Reagan administration appointees Robert Bork and Antonin Scalia overriding the third judge—that Congress had not actually made the Fairness Doctrine an actual law. Bork writes, “We do not believe that language adopted in 1959 made the Fairness Doctrine a binding statutory obligation” because the doctrine was imposed “under,” not “by,” the Communications Act of 1934. In Bork’s opinion, the 1959 amendment established that the FCC could apply the doctrine, but is not legally obliged to do so. Therefore, the FCC can retain or drop the rule as it likes. According to the Media Access Project, “The decision contravened 25 years of FCC holdings that the doctrine had been put into law in 1959.” [Fairness and Accuracy in Reporting, 2/12/2005; Museum of Broadcasting, 1/27/2008]

Congress attempts to bring back the Fairness Doctrine (see 1987), a provision that mandates the broadcasting of differing viewpoints on controversial political and social issues (see 1949 and 1959). Though the legislation passes both houses of Congress by wide margins, President Reagan vetoes the legislation, and Congress is unable to muster enough votes to override the veto. In 2008, authors Kathleen Hall Jamieson and Joseph N. Cappella will write: “The end of the Fairness Doctrine paved the way for talk radio as we know it today (see 1990-1993). Neither hosts nor stations currently have an obligation to provide balance or to open their programs to those of competing views.” [Fairness and Accuracy in Reporting, 2/12/2005; Jamieson and Cappella, 2008, pp. 45]

In an article examining the history and impact of the Fairness Doctrine (see 1949 and 1959), progressive communications law expert Steve Rendell writes that since the doctrine’s repeal (see 1987 and 1988), there has been far less coverage of controversial public issues on the nation’s airwaves. The Media Access Project (MAP) says, “Since the demise of the Fairness Doctrine we have had much less coverage of issues,” with television news and public affairs programming decreasing both locally and nationally. Twenty-five percent of broadcast stations offer no local news or public affairs programming at all. Rendell writes: “The most extreme change has been in the immense volume of unanswered conservative opinion heard on the airwaves, especially on talk radio. Nationally, virtually all of the leading political talkshow hosts are right-wingers: Rush Limbaugh, Sean Hannity, Michael Savage, Oliver North, G. Gordon Liddy, Bill O’Reilly, and Michael Reagan, to name just a few. The same goes for local talkshows. One product of the post-Fairness era is the conservative ‘Hot Talk’ format, featuring one right-wing host after another and little else.” A lawyer in Oregon, Edward Monks, found that his local stations broadcast 80 hours per week of Republican and conservative talk, and none whatsoever of Democratic or liberal/progressive talk. Monks wrote: “Political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society. There is nothing fair, balanced, or democratic about it.” Robert F. Kennedy Jr. has written, “The FCC [Federal Communications Commission]‘s pro-industry, anti-regulatory philosophy has effectively ended the right of access to broadcast television by any but the moneyed interests.” Rendell concludes that the nation “need[s] a Fairness Doctrine. It’s not a universal solution. It’s not a substitute for reform or for diversity of ownership. It’s simply a mechanism to address the most extreme kinds of broadcast abuse.” [Fairness and Accuracy in Reporting, 2/12/2005]

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